Whether a death penalty defendant received ineffective assistance of trial counsel for failing to investigate and present evidence of the defendant's good behavior during pretrial incarceration

QUESTIONS PRESENTED 1. In Skipper v. South Carolina, 476 U.S. 1 (1986), the trial court ruled as irrelevant the testimony of two jailers and a “regular visitor” that Skipper behaved well and “made a good adjustment” during 7.5 months of pretrial custody. This Court held that the exclusion of relevant mitigating evidence impedes the jury’s ability to carry out its task of considering all relevant facets of a defendant’s character and record. “[C]onsideration of a defendant’s past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing...and any sentencing authority must predict a (defendant’s) probable future conduct when it engages in the process of determining what punishment to impose.” In other words, the best predictor of future behavior is past behavior. Hummel was in pretrial incarceration for 19 months and the deputies who interacted with him daily were available and willing to testify that Hummel was a low-risk inmate who behaved very well. However, trial counsel did not bother investigating and adducing this critical mitigative evidence. Question: Under the Sixth Amendment, Strickland v. Washington, 466 U.S. 668 (1984), Wiggins, and Wong, does a death penalty defendant receive ineffective assistance of trial counsel if trial counsel fails to investigate and adduce available evidence regarding the defendant’s exceptional behavior during a lengthy pretrial incarceration, thereby impeding the jury’s ability to carry out its task of considering all relevant facets of the defendant’s character and record? 2. Under Smith v. Robbins, 528 U.S. 259 (2000), the Sixth and Fourteenth Amendments require the effective assistance of appellate counsel under the Strickland standard. Under United States v. Montoya de Hernandez, 473 U.S. 531 (1985), the Fourth Amendment applies to border-searches unless it is “routine” or agents, considering all facts surrounding the traveler and his trip, reasonably suspect that he is smuggling contraband. Under 8 U.S.C. § 1357(a)(5) and 8 C.F.R. § 235.1(b), once CBP confirms that a person is a U.S. citizen with no warrants or reason to hold him and he did not commit: (1) an offense against the U.S. in CBP’s presence; or (2) any felony cognizable under federal law, CBP must allow immediate entry. After Hummel was confirmed immediately admissible, he was illegally held 3.5 hours until CBP received an arrest warrant. Thus, a prolonged border-detention occurred without probable cause. However, rather than raise the prolonged-stop as error, appellate counsel focused on the affidavit for the arrest warrant and stated that Hummel’s subsequent confession was “the culmination and result of all of the previous unconstitutional state actions.” Question: Under the Sixth and Fourteenth Amendments and Strickland, does a death penalty defendant receive ineffective assistance of appellant counsel if appellate counsel fails to raise a critical point of error or inadequately briefs it?